Marijuana and the Workplace

Medical marijuana has been legal in Canada since 1999, and the recreational use of marijuana is expected to become legal in 2018. While marijuana use is not new, employers are becoming concerned about the impact that legalization and the likely increase in consumption will have in the workplace. Specific concerns include the operations of motor vehicles, decreased work performance and attendance.

The Human Resources Professionals Association recently published a white paper with the following suggestions for employers:

Employers have a duty to accommodate the disabilities of employees up to the point of undue hardship. This may include accommodating an employee’s use of medical marijuana, and even accommodating substance abuse and addictions. A zero-tolerance policy could be discriminatory against employees who use medical marijuana to treat or relieve the symptoms of a disability. Thus, zero-tolerance policies are not recommended, except where sobriety is a bonafide occupational requirement (safety-sensitive workplaces).

Employers should consider a clear drug policy that treats medical marijuana like other prescriptions, and that defines what it means to be impaired. Marijuana can be taken in may forms and doses, not all of which will affect an employee’s ability to complete their essential job duties.

Employer drug testing policies need to be kept up to date because testing technology is rapidly advancing, and a clear method of determining impairment is not yet available. Other policies should be reviewed and updated as the law develops in this area.

Earlier this year the Supreme Court of Canada ruled in favour of an employer that fired a worked who was involved in an accident with a front end loader and then tested positive for cocaine. The employer’s drug and alcohol policy required that employees disclose any dependency or addiction issues. If they did, they would be offered treatment. If they didn’t, were involved in an accident, and tested positive for drugs or alcohol, they would be fired. In this case, the employee never disclosed his drug use to the employer. After termination, he filed a human rights claim, arguing that he was fired because of his addition (which was discriminatory). The court disagreed and held that he was fired for violation the employer’s policy, a policy that was not discriminatory because he was capable of complying with it.

Policies that require disclosure of alcohol and drug dependency or addiction issues may be valid and enforceable. Policies that are impossible for an addicted employee to comply with should be avoided. Employers should make it clear that disciplinary actions are not taken because of the employee’s addiction, but because of a breach of the workplace policy.

Co-ownership Agreements

Purchasing a Home with Family Members

The cost of homes in the Greater Victoria Area increased significantly in the last few years. A lot of individuals are not able to purchase a home on their own. One of the solutions might be a joint purchase with family members. A family can purchase a joint home to live in or as an investment opportunity.

A co-ownership agreement provides for clarity and alleviates risks associated with joint ownership. An agreement will ensure that matters such as:

  • the difference between legal and beneficial ownership;
  • which parties are responsible for the mortgage;
  • who pays what expenses and in what proportion; and
  • what happens when one of the owners wants to sell; and
  • how are the funds distributed upon the sale;

are in place for you and your family’s protection.


Contact Beacon Law Centre for trusted advice on co-ownership agreements.


Article written by: Victoria Garner, Lawyer at Beacon Law Centre

Roles of Godparents & Legal Guardians

Godparents and guardians play an important role in a child’s life. Many centuries ago godparents were responsible for caring for a child should that child be orphaned. Today, godparents do not have any legal responsibility.

A godparent might help parents raise a child in the Christian faith to provide spiritual guidance and support to the child. Godparents are often chosen at a child’s baptism.

Legal guardians assume the role of the parent if the child’s parents were to pass away. Legal guardians are most often appointed through a Will.

Godparents and legal guardians have different roles. The best way to make sure that parents’ wishes regarding guardianship are respected is to state them explicitly in the parent’s Will.

Often godparents do not change during a child’s lifetime. On the other hand, the legal guardians can change. Sometimes parents do not make a guardianship designation for their children in a Will because they cannot select a guardian. That is not generally an issue because one can change his or her Will several times in their lifetime and change the names of the legal guardians. As personal circumstances change, and families relocate and grow, legal guardians might need to change.

It is possible for one’s godparents and legal guardians to be the same people. However, additional legal steps must be taken to recognize a godparent as child’s potential legal guardian. Guardians must be appointed within a parents’ Will. Without that step, a godparent cannot be guaranteed to be child’s legal guardian.


Article written by: Victoria Garner

Do You Need a Second Will?

Thanks to a recent change in BC’s estate laws, business owners can now reduce the amount of probate fees payable by their estate by utilizing a second will.  Probate usually becomes necessary because third parties, such as financial institutions, or the Land Title Office, want assurance that the executor has the authority to deal with a particular asset.  Probate fees are payable to the government based on the value of the estate assets.  The articles of most private companies allow for the transfer of a deceased shareholder’s shares to the estate without probate.  However, if probate is required because other assets were owned solely by the deceased (such as a vehicle, bank account or real estate), the company shares must be listed in the probate application and will be subject to probate fees.  If the company shares are dealt with in a separate will, probate fees for the shares are avoided.  To benefit from a second will, you must appoint a different executor under each will.  If you think you would benefit from dual wills, we can help.

Beware of Fixed Term Employment Contracts

A recent decision of the Ontario Court of Appeal (which the Supreme Court of Canada has declined to reconsider) highlights the danger of using fixed term employment contracts.  The employee was hired for a 5 year term pursuant to a written employment agreement.  The agreement also stated that “Employment may be terminated at any time and the amounts paid to the employee shall be in accordance with the Employment Standards Act”.  After 23 months, the employee was fired and paid two weeks’ severance in accordance with the Employment Standards Act.  The judge found the termination provision ambiguous, and ambiguity in an employment agreement is always construed against the employer.  The Court of Appeal agreed, and confirmed that the employee was entitled to be paid for the remainder of the 5 year term (a hit to the employer of $180,000, not including the legal fees of the case!).  If you use fixed term employment agreements, it is strongly recommended that the terms be precise and carefully drafted.

Franchise Act Update

BC’s Franchises Act will come into force on February 1, 2017, making BC the 6th jurisdiction in Canada to have franchise legislation.   As previously reported, franchisors will be required to provide franchisees with a Franchise Disclosure Document (FDD) at least 14 days before a franchise agreement is signed. BC’s legislation appears to be more business-friendly than in some other provinces. For example, franchisors can require franchisees to sign confidentiality agreements and provide refundable deposits (of up to 20% of the initial franchise fee) when they receive the FDD. Franchisors who operate in any of the existing regulated provinces will find it easy to comply with the BC Act. BC franchisees will benefit from improved access to information and remedies.

Are Waivers Effective?

Many businesses require their customers to sign a waiver to release the business from liability for certain claims.  A recent court case upheld the validity of a fitness club’s waiver, and highlighted some of the issues that affect their validity.  A customer of the fitness club injured her shoulder and claimed the injury was due to a defective shoulder press machine.   She alleged that the waiver she signed was invalid because its legal effect was not explained to her.  The waiver was in capital letters (while the rest of the contract was not) and the customer initialed the clause.  The court confirmed that, as a general rule, if a person signs a contract without reading it, they are still bound by its terms, unless there has been fraud, misrepresentation or a very onerous term that you wouldn’t expect to be in it.  The court also found that a waiver will not protect a business from claims for negligence, unless that is clearly stated, as it was in this case.  While the waiver was upheld, it is also prudent for a business to have liability insurance, and to be incorporated to protect the owners from personal liability.

Time Off for Child Care can be a Human Right

Summer can be a challenging time for working parents of young children.  Childcare available during the school year is often not available during the summer months.  A few recent human rights cases have highlighted the need for employers to accommodate the need for parents to take time off for childcare.  Denying time off may constitute discrimination on the basis of family status.  Employees are expected to make reasonable efforts to find alternative childcare solutions that will not require them to be absent from work (this duty generally does not apply when the need for childcare is sporadic or unexpected).   However, if no reasonable alternative exists, an employer has a duty to accommodate the employee’s need for time off, provided it does not cause undue hardship to the employer.

Deep Cove Market 50/50 Gold Mine Lottery

Don’t miss out on the Deep Cove Market 50/50 Gold Mine Lottery – sponsored by our Rotary Club of Sidney by the Sea

No Copyright or Trademark Protection for Metatags and Keywords

No Copyright or Trademark Protection for Metatags and Keywords

November 2015

A travel agency that copied the metatags from several pages of a competitor’s website did not infringe on the competitor’s copyright or trademarks, according to a recent decision of the Federal Court of Canada.  The metatags were mostly derived from Google keywords that are commonly used in the travel industry.  However, the court did say that, in some cases, originally-worded metatags may have copyright protection.  In another case, the BC Supreme Court ruled that using a competitor’s business name or trademarks for keyword advertising is not trademark infringement.  This case is under appeal, although it is the second Canadian decision that found this practice to be fair use.